The opinion
On Rehearing.
It is believed that the opinion of this court is not in conflict with the case of Indemnity Co. v. White (Tex. Civ. App.) 10 S.W.(2d) 263 , and other cases relied on by appellant. They involve facts different from the facts controlling the present appeal. As stated in the original opinion here, the 'appellant filed with the board, in the first instance, a claim “for both total incapacity and permanent partial incapacity to labor as a result of the injury.” Upon a hearing the board found as a fact that claimant “suffered total incapacity for the performance of labor in consequence of said injury for the total' period 'of 10⅜ weeks, including the waiting period of one week,” but found against his claim of “permanent partial incapacity to labor” following upon the temporary “total incapacity” of 10⅝ weeks. Upon the filing of the present application for review, of date August 2, 1928, the board, after a hearing thereon on September 13, 1928, determined that in point of fact the evidence “•has failed to establish to the satisfaction of the board that any change of conditions has been undergone with reference to the physical condition of claimant.” The denial of the •board to make revision of the award “in mere' increase of the amount of compensation” was upon the ground purely that the board had no authority to do so, after the expiration of “the compensation period” of the award itself, where, as was found, there were no new ■or additional facts arising not “previously passed upon” in the award in the first instance. In other words, unless new facts were “shown” with reference to the physical condition of the claimant, a revision of the former award could not be made after the compensation period of the original award had expired. The remedy in retrial of the same issues upon the same facts was by appeal at. the time of the original award. The trial coprt’s opinion and the one made on this appeal reflect and intend the same holding.
The motion for a rehearing is overruled.